CONSOLIDATED EDISON CO. OF NEW YORK v. U.S.

CONSOLIDATED EDISON COMPANY OF NEW YORK, ET AL., PLAINTIFFS,v.UNITED STATES OF AMERICA, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Knapp, Senior District Judge.

OPINION & ORDER

Plaintiffs have moved, pursuant to Fed. R.Civ.P. 7 and
28 U.S.C. § 1292(d)(4)(B), for an order lifting the stay of
proceedings in this action for the limited purpose of allowing
discovery to proceed.

BACKGROUND

Plaintiffs are twenty-two domestic nuclear utility companies
who seek declaratory and injunctive relief to avoid having to pay
special assessments imposed upon them by a federal statute which
they contend is unconstitutional. A fuller recitation of the
facts can be found in our prior opinions of November 25, 1998 and
April 12, 1999.

The original complaint was filed on June 12, 1998; an amended
complaint was subsequently filed before the defendants' time to
answer had expired. On June 16, 1998, the plaintiffs served a
document request on the defendants pursuant to Fed. R.Civ.P. 26
and 34. Instead of answering the complaint or responding to the
document request, the defendants elected to move to stay all
proceedings pending the outcome of related actions in the United
States Court of Federal Claims ("CFC"). We issued an Opinion and
Order dated November 25, 1998 which denied that motion and
certified the question for interlocutory appeal. Defendants then
moved to dismiss this action for lack of subject matter
jurisdiction, or, in the alternative, to transfer this action to
the CFC. In a decision dated April 12, 1999, we denied that
motion but again certified the question for interlocutory appeal.

Upon the filing of defendants' motion to transfer the case to
the CFC, a statutory stay went into effect pursuant to
28 U.S.C. § 1292(d)(4)(B). At a conference on April 22, 1999, the
plaintiffs asked that the statutory stay be lifted so that
discovery could proceed. When the defendants opposed any lifting
of the statutory stay, we directed the parties to brief the
question.

DISCUSSION

Title 28 U.S.C. § 1292(d)(4)(B) provides, in relevant part:

When a motion to transfer an action to the Court of
Federal Claims is filed in a district court, no
further proceedings shall be taken in the district
court until 60 days after the court has ruled upon
the motion. If an appeal is taken from the district
court's grant or denial of the motion, proceedings
shall be further stayed until the appeal has been
decided by the Court of Appeals for the Federal
Circuit. The stay of proceedings in the district
court shall not bar the granting of preliminary or
injunctive relief, where appropriate and where
expedition is reasonably necessary. (emphasis ours)

For the foregoing reasons, plaintiff's motion for an order
lifting the statutory stay so that discovery can proceed is
denied.

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